In the Court of Smt. Poonam Singh, District Judge (Senior Div.

),

Patiala House Courts, New Delhi District, Delhi

Suit No. 5250 / 2018

Topic: Withdrawal of Suit

In the matter of:

Anuj Parmar … Applicant

Versus

Dev Sahay … Defendant

Application for withdrawal of civil suit under Order XXIII Rule 1 & 3
of the Code of Civil Procedure, 1908

PROJECT- “CIVIL PROCEDURE CODE & LIMITATION

ACT-II”
Submitted by:

Rashi Gupta

PRN: 16010223080

Programme: B.A. LL.B. Group: B

Semester/Year: VIII/4th Year

Batch: 2016-21

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune

Under the guidance of:

Ms. Megha Nagpal

Assistant Professor

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune

(January-March, 2020)
 DECLARATION
(For Internal Assessment Project of Civil Procedure Code &
Limitation Act II)
This Project based on a hypothetical civil dispute relating to Withdrawal of Civil Suit,
submitted by the undersigned to Symbiosis Law School, NOIDA, Symbiosis
International (Deemed University), Pune for the course, ‘Civil Procedure Code and
Limitation Act II’ as part of Internal Assessment is based on an imaginary situation
which has no relation to any person living or dead. The research work has not been
submitted elsewhere for award of any degree or any other purpose whatsoever.

The ‘remedy’ and ‘draft’ portion of the project has been submitted purely for
understanding applicability of provisions of the Code of Civil Procedure, 1908 and/or
the Limitation Act, 1963 as part of project for the aforesaid course. The designation/s,
if any, given in the project are purely hypothetical.

The contents of the project are original and not plagiarised. The material borrowed
from other sources and incorporated in the project has been duly acknowledged.

I have also taken due care that the contents of my project are not similar or same as
another learner’s project for the aforesaid course.

I understand that I could be held responsible and accountable for plagiarism, if any,
even if detected later.

(Signature of the Learner)

Date: January 31, 2020

Name of the Learner: Rashi Gupta

PRN: 16010223080
Batch: 2016-21
Programme: B.A. LL.B.
GROUP: B
Symbiosis Law School, NOIDA
Symbiosis International (Deemed University), Pune
 INDEX

PART I 1
Factual Situation 1
Issue
Rule 1-2
PART II 3
IRAC Analysis 3
● Anil Kumar Singh v. Vijay Pal Singh ans ors. 3-4
(2018) 12 SCC 584 3-4
● Vallabh Das v. Dr. Madan Lal and ors. 4-5
(1970) 1 SCC 761 4-5
● Ghulam Nabi Dar v. State of Jammu & Kashmir 5-6
2013 3 SCC 353 5-6
PART III 7
ANSWER 7
REMEDY 8
PART IV 8-11
PART I

FACTUAL SITUATION

Mr. Anuj and Mr. Dev are partners to a business firm based out of New Delhi district
in Delhi. Both these partners have known each other since a long time and their strong
bond of friendship is well known in the city. Owing to this understanding that they
both shared, Mr. Anuj and Mr. Dev decided to open a business of manufacturing iron
bars. They partnership firm was established by way of a partnership agreement under
the Partnership Act, 1932; between Mr. Anuj and Mr. Dev.

Mr. Dev’s father was a reckoned business man of the country and was a person
committed towards society well being. He had already drafted a will by which he had
transferred all his personal property to an orphanage in the city. He always
encouraged Mr. Anuj and Mr. Dev to start their business. The business firm of Mr.
Anuj and Mr. Dev was going well until differences started to arise between both the
partners. Situation became such that both of them have accused each other on several
occasions. Due to the personal conflict, the business of iron bars was suffering.
Shyam and Lal decided to end up the firm and start their own personal business of
iron bars. In order to give effect to the same, Mr. Anuj filed a suit for dissolution
under S.44 of the Partnership Act, 1932.

In the meanwhile, Mr. Dev’s father came to know about the conflict and the suit filed
by the partners. After a few rounds of counselling session and effort put in by the
father, both the partners sorted out the differences between themselves. This entire
process of settlement was completed by way of a formal agreement that was entered
into by the partners through a MoU dated 23.01.2019 by which the conflict was
finally settled.

Mr. Anuj agreed to withdraw his suit filed u/s. 44 of the Partnership Act, 1932. The
counsels of both the parties requested the court the liberty to reach to a position of
compromise, which was accordingly granted by the Civil Judge.

Issue:
Whether a suit once instituted against an individual, be withdrawn?

Rule:
Order XXIII of the Code of Civil Procedure

R.1: Withdrawal of suit or abandonment of part of claim.— (1) At any time after
the institution of a suit, the plaintiff may as against all or any of the defendants
abandon his suit or abandon a part of his claim:
 Provided that where the plaintiff is a minor or other person to whom the
provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor
any part of the claim shall be abandoned without the leave of the Court.
R.3 : Compromise of suit.— Where it is proved to the satisfaction of the Court that a
suit has been adjusted wholly or in part by any lawful agreement or compromise, 1[in
writing and signed by the parties] or where the defendant satisfies the plaintiff in
respect of the whole or any part of the subject-matter of the suit, the Court shall order
such agreement, compromise or satisfaction to be recorded, and shall pass a decree in
accordance therewith 2[so far as it relates to the parties to the suit, whether or not the
subject-matter of the agreement, compromise or satisfaction is the same as the
subject-matter of the suit]:
3
[Provided that where it is alleged by one party and denied by the other that an
adjustment or satisfaction has been arrived at, the Court shall decide the question;
but no adjournment shall be granted for the purpose of deciding the question,
unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.]
4
[Explanation.— An agreement or compromise which is void or voidable under
the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the
meaning of this rule.]
PART II

IRAC ANALYSIS
1. Anil Kumar Singh v. Vijay Pal Singh ans ors.

(2018) 12 SCC 584

(Before: Abhay Manohar Sapre, J.)

Facts:
The matter was filed as an appeal to the Supreme Court of India against the impugned
order by the Allahabad High Court. By the said impugned order, the High Court had
set aside the order of the Additional Civil Judge of Hardoi. The suit was filed out of
the land dispute which arose between the parties relating to the possession and title to
the disputed land on which a brick kiln was situated. The appellants filed a civil suit
by which they prayed to the court to grant them a permanent injunction against the
respondents from interfering into the affairs associated with the piece of disputed
land. The trail passed an ex-parte temporary injunction order against the respondent.
In the meantime, both the parties arrived at an agreement outside the court that by
which Respondent No.1 agreed not to interfere with the possession of the land of the
appellants. The appellant filed an application before the court praying that they may
be allowed to withdraw their suit owing to the agreement arrived at between the
parties upon a payment of Rs.350 to the respondents.

Issue:
Whether the lower courts were justified in entertaining the application for withdrawal
of the suit under Order XXIII R.1 upon parties reaching a compromise under the code
of civil procedure?

Rule:
R.1: Withdrawal of suit or abandonment of part of claim.— (1) At any time after
the institution of a suit, the plaintiff may as against all or any of the defendants
abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the
provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor
any part of the claim shall be abandoned without the leave of the Court.
R.3 : Compromise of suit.— Where it is proved to the satisfaction of the Court that a
suit has been adjusted wholly or in part by any lawful agreement or compromise, 1[in
writing and signed by the parties] or where the defendant satisfies the plaintiff in
respect of the whole or any part of the subject-matter of the suit, the Court shall order
such agreement, compromise or satisfaction to be recorded, and shall pass a decree in
accordance therewith 2[so far as it relates to the parties to the suit, whether or not the
subject-matter of the agreement, compromise or satisfaction is the same as the
subject-matter of the suit]:
3
[Provided that where it is alleged by one party and denied by the other that an
adjustment or satisfaction has been arrived at, the Court shall decide the question;
but no adjournment shall be granted for the purpose of deciding the question,
unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.]
4
[Explanation.— An agreement or compromise which is void or voidable under
the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the
meaning of this rule.]

Analysis:
The question that was to be answered by the Court was whether the trial court was
justified in allowing the applicants to withdraw the suit after an agreement was
reached between the applicant and the respondent that the respondent shall not
interfere with the property in the possession of the applicant. The provision of the
concerned rule in the code lay down that the petitioner has a right to file an
application praying the court to withdraw their suit. The respondents shall have no
objection to any such application filed by the applicant. If any such permission is
granted, the plaintiff shall only be liable to pay the respondent the costs. However,
this shall further prevent the applicant from filing another suit on the same subject
matter and involving the same question of law or part thereof. The courts shall
generally allow the petitioner to withdraw the suit without any objections from the
respondents. In a condition where the applicant requests for such withdrawal with
liberty to file a fresh application, any objections by the respondents can only be raised
in these circumstances. Since, that is not the case here the application for withdrawal
shall be entertained by the court.

Conclusion:
The Court setting aside the order of the High Court upheld the order of the trial court.
Since the applicant didn’t make an application for amending the suit or filing a
different suit on the same matter involving the same question of laws, therefore the
petition was rightly granted to be withdrawn. Therefore, the defendant shall have no
right to compel the party filing the suit to further contest into litigation in such
circumstances.
 2. Vallabh Das v. Dr. Madan Lal and ors.

(1970) 1 SCC 761

(Before: J.C.Shah and K.S.Hegde, JJ.)

Facts:
The first respondent in the instant matter had filed a suit for a declaration that he was
an adopted son of the Prem Sukh. The suit was filed in the regard to attain the
possession of the properties. Prem Sukh denied any such adoption made by the
appellant. Prem Sukh died during the pendency of the suit and the first respondent
was granted the liberty to withdraw the suit with a liberty to file a fresh suit on the
same cause of action on a condition that the defendant shall pay the appellants all
costs as ordered before instituting any such suit.

Issue:
Whether the second suit filed upon non compliance with the directions as given at the
time of withdrawal of the first suit can be entertained by a court?

Rule:
Order XXIII R.1 of the Code of Civil Procedure, 1908

Withdrawal of suit or abandonment of part of claim-

1) At any time after the institution of a suit, the plaintiff may as against all or any of
the defendants abandon his suit or abandon a part of his claim:

Provided that where the plaintiff is a minor or other person to whom the provisions
contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the
claim shall be abandoned without the leave of the Court.

Analysis:
The expression ‘subject matter’ has not been defined in the Code of Civil Procedure.
However, the expression has a reference to a right in the property which the plaintiff
seeks to enforce. The subsequent suit cannot be said to be filed on the same subject
matter as that of the previous suit unless the cause of action or the relief that is being
claimed is congruent. The subject matter as provided in the Civil Procedure Code
shall include a series of acts or transactions that shall give rise to the same relief
claimed. In a situation where the relief claimed in the earlier petition is same as that of
the second petition, there exists a bar on such applications being entertained by the
court unless an express permission to this regard by the court itself. Also, any non
fulfilment of the terms and conditions which shall entitle the person to file the second
suit on the same subject matter cannot be entertained on grounds of non fulfilment of
the conditions to file the second suit in that regard.

Conclusion:
The second application filed in this regard was rejected upon non fulfilment of the
terms and conditions as imposed by the court while dismissing the earlier petition and
thereby granting a liberty to file an application on the same cause of action in a
subsequent suit.

3. Ghulam Nabi Dar v. State of Jammu & Kashmir

2013 3 SCC 353

(Before: R.V.Raveendran and H.L.Gokhale, JJ.)

Facts:
The instant petition was originally filed in the High Court in the form of a writ
petition. The petitioners had originally challenged the custodian’s order to evacuate
the piece of land on which the petitioners were living issued under S.6 of the J&K
State Evacuees’ (Administration of Property) Rules, 2006. The single judge bench of
the High Court prevented any construction on the piece of land to be done by the
acquirer. Aggrieved by the order of the single judge of the High Court, the acquirer
preferred an appeal before the division bench. While the matter was pending before
the division bench, the parties reach a compromise wherein they had decided to share
the piece of land amongst themselves.

Issue:
Whether a compromise can be made to a civil suit and subsequently can be
withdrawn?

Rule:
R.1: Withdrawal of suit or abandonment of part of claim.— (1) At any time after
the institution of a suit, the plaintiff may as against all or any of the defendants
abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the
provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor
any part of the claim shall be abandoned without the leave of the Court.
R.3 : Compromise of suit.— Where it is proved to the satisfaction of the Court that a
suit has been adjusted wholly or in part by any lawful agreement or compromise, 1[in
writing and signed by the parties] or where the defendant satisfies the plaintiff in
respect of the whole or any part of the subject-matter of the suit, the Court shall order
such agreement, compromise or satisfaction to be recorded, and shall pass a decree in
accordance therewith 2[so far as it relates to the parties to the suit, whether or not the
subject-matter of the agreement, compromise or satisfaction is the same as the
subject-matter of the suit]:
3
[Provided that where it is alleged by one party and denied by the other that an
adjustment or satisfaction has been arrived at, the Court shall decide the question;
but no adjournment shall be granted for the purpose of deciding the question,
unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.]
4
[Explanation.— An agreement or compromise which is void or voidable under
the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the
meaning of this rule.]
J&K State Evacuees’ (Administration of Property) Rules, 2006
6. Notification of evacuee property. - (1) The Custodian may, from time to time,
notify, either by publication in the Jammu and Kashmir Government Gazette or in
such other manner as may be prescribed, evacuee properties which have vested in him
under this Act.
(2) Where after the vesting of any evacuee property in the Custodian any person is
in possession of any such property he shall be deemed to beholding it on behalf of the
Custodian and shall, on demand, surrender possession of it to the Custodian or any
person duly authorised by him in this behalf.

Analysis:
The appeal was filed against the orders of the division bench of the Delhi High Court
which had recognised and enforced the agreement of compromise arrived at by the
parties. The appeal to the Supreme Court was made solely on the ground of
challenging the validity of the order of the High Court which gave effect to the
compromise agreement. Held, that the parties have a statutory right to reach a
compromise in a civil dispute and the court cannot refuse to recognise any such
compromise agreement arrived at provided it does not violate the essentials of a valid
contract.

Conclusion:
The compromise agreement between the parties was held to be a valid agreement and
therefore enforceable.
PART III

ANSWER
Yes, a civil suit may be withdrawn after institution of the suit, if the parties reach a
compromise and settle their differences. Order XXIII of The Code of Civil Procedure
provides for such remedy. An application informing about the intention of the
applicant to withdraw the suit shall be filed before the court where the original suit
has been filed. The defendant cannot object to the applicant’s withdrawal petition
however, may claim for the cost that has been incurred by the defendant till then.

REMEDY
Mr. Anuj shall file an application of withdrawal of the suit before the same court
where the application under Partnership Act was filed. However, a specific prayer
shall also be made requesting the court to grant permission to institute a fresh
application on the same cause of action if the respondent fails to comply with the
terms and conditions of the MoU.
It is important to mention here that the compromise settlement shall be drafted in the
form of a memorandum of understanding only so that the other party shall be legally
bound to the terms of the agreement. Also, though upon withdrawal, there applies no
res-judicata to file any further suit, but liberty shall be asked from the court to file a
fresh application on the same cause of action if the other party fails to honour the
terms of the undertaking.
PART IV

In the Court of Smt. Poonam Singh, District Judge (Senior Div.),

Patiala House Court, New DElhi District, Delhi
CIVIL. APP. NO. 5250 OF 2018

In the matter of:

Anuj Parmar
…Applicant

-VERSUS-

Dev Sahay
…Respondent

APPLICATION ON BEHALF OF THE PETITIONER UNDER

ORDER XXIII RULE 3 READ WITH SECTION 151 OF THE
CODE OF CIVIL PROCEDURE, 1908

MOST RESPECTFULLY SHOWETH:

1. The Applicant had instituted the instant suit for dissolving of the partnership
firm under S.44 of the Partnership Act, 1932.
2. The Applicant and the Respondent in the instant suit were operating their
business together by means of a registered business firm by the name of Sri
Krishna Steel and operates in Delhi and NCR. Due to the circumstances which
had arisen, the Applicant thought it proper to dissolve the business firm and
establish his own separate business in the same field. A suit for dissolving of
the firm was filed under the Partnership Act
3. However, during the pendency of the instant Writ Petition before this Hon’ble
Court, the Petitioner and the Respondent have mutually agreed to settle all
their disputes and differences and have also agreed to withdraw all
proceedings against each other in relation to and/or arising out of the
Complaint.
4. In pursuance of the said agreement to settle all disputes and differences, the
Petitioner and the Respondent have entered into a Memorandum of
Understanding dated 27th January 2019 (“MoU”).
5. The Petitioner in discharge of her obligations under the MoU has already
made necessary logistical requirements in the office so as to ensure that the
firm is not dissolved.

6. The Respondent has also performed their obligations in terms of the MoU as
undertaken and mentioned above
7. The parties undertake to remain bound by the terms and conditions of the
MoU. The parties state that they have entered into the MoU without any
coercion or undue influence and after completely understanding the terms and
conditions of the MoU and the consequences thereof. Both the parties have
obtained independent legal advice from their respective counsels/lawyers in
regard to the terms and conditions of the MoU and the present application.
8. Under such circumstances it is expedient in the interest of justice that the
present suit be disposed off on the basis of the terms and conditions contained
in the MoU.
9. This Application is being made bonafide in the interest of justice. No prejudice
would be caused to anyone in case the present Application is allowed.
 PRAYER

In the light of the facts and circumstances stated hereinabove, it is most humbly
prayed that this Hon’ble Court may be graciously pleased to:

1. Take on record the Memorandum of Understanding dated 27 th January 2019;

2. Dispose of the instant suit under the Partnership Act, 1932 and WP No. 689 of
2014, as being withdrawn, on the terms and conditions recorded in the
Memorandum of Understanding dated 27th January 2019;
3. Grant liberty to the Applicant to file a fresh suit against the Respondent in
circumstance of a default of the terms and conditions of the MoU
4. Pass such further orders as this Hon’ble Court may deem fit and proper in the
facts and circumstances of the instant case

AND FOR THIS ACT OF KINDNESS, THE PETITIONERS AS IN DUTY

BOUND SHALL EVER PRAY.

PETITIONER

THROUGH

Rashi Gupta
Counsel for the Petitioner
A-902, Saya Residency, Indirapuram
Ghaziabad, 201014

New Delhi
Dated: 30th January, 2020.
 In the Court of Smt. Poonam Singh, District Judge (Senior Div.),

Patiala House Courts, New Delhi District, Delhi

Suit No. 5250 / 2018

In the matter of:

Anuj Parmar …Applicant

VERSUS

Dev Sahay
…Respondent
AFFIDAVIT

I, Anuj Parmar, S/o Mr. G.S. Parmar, R/o D-1102, Greens Residency, Saket, Delhi
aged about 26 years, do hereby solemnly affirm and state as follows:

1. That I am the Petitioner in the above mentioned Petition and I am also fully
conversant with the facts and circumstances of the case. Hence I am competent
to swear and affirm this Affidavit.
2. The contents of the accompanying Application has been prepared under my
instructions and the statements contained in the accompanying Application are
true to my knowledge and based on the information received from the record
of the case.
3. I state that the content of the accompanying Application is true and has been
drafted as per my directions.
4. That I have entered into a MoU with the respondent in the instant matter by
way of which we have reached a position of compromise and therefore, do not
want to continue with the suit any further.